reached, that there are no satisfactory grounds upon which Sunday laws can be sustained, and the constitutional objections avoided?

It matters not what is the moving cause, or what amount of gratification is had out of the act, the commission of a trespass upon another's rights, or the reasonable fear of such a trespass, always constitutes sufficient ground for the exercise of police power. The prevention of a trespass is the invariable purpose of a police regulation. It is the right of every one to enjoy quietly, and without disturbance, his religious liberty, and his right is invaded as much by noise and bustle on his day of rest, varying only in degree, as by a prohibition of religious worship according to one's convictions. Noisy trades and amusements, and other like disturbances of the otherwise impressive quiet of a Sunday, may therefore be prohibited on that day, in complete conformity with the limitations of police power.1 But the prosecution of noiseless occupations, and the indulgence in quiet, orderly amusements, since they involve no violation of private right, cannot be prohibited by law without infringing upon the religious liberty of those who are thus prevented, and such regulations would therefore be unconstitutional. It is barely possible, but doubtful, that a law could be sustained under the principles here advanced, which required that the front doors of stores and places of amusement should be kept closed on Sunday, but not otherwise interfering with the noiseless occupations and diversions. The total prohibition of such employments and labor on Sunday, except possibly for a reason to be suggested and explained later, could only be justified by the

1 "While I am thus resting on the Sabbath in obedience to law, it is right and reasonable that my rest should not be disturbed by others. Such a disturbance by others of my rest, is in its nature a nuisance, which the law ought to punish, and Sabbath-breaking has been frequently classed with nuisances and punished as such." State v. B. & O. R. R., 15 W. Va. 362 (36 Am. Rep. 803, 814.)

religious character of the day, and we have already seen that that aspect of Sunday cannot be taken into account, in framing the Sunday laws.

But there is, perhaps, a constitutional reason why the prohibition of labor on Sunday should be extended to other than noisy trades and employments. The reason calls for the avoidance of an indirectly threatened trespass, rather than the prohibition of a direct invasion of right. In the ideal state of nature, when free agency and independence of the behests of others may be considered factual, the prosecution of a noiseless trade or other occupation could not in any sense be considered as, either constituting a trespass, or threatening one. Each man, being left free to do as he pleased, would then have the equal liberty of joining in the religious observance of the day or continuing his labor, subject to the single condition, that he must not in doing so disturb the religious worship of others. But we are not living in a state of nature. Whatever the metaphysicians or theologians may tell us about free will, in the complex society of the present age, the individual is a free agent to but a limited degree. He is in the main but the creature of circumstances. Like the shuttle, he may turn to the right or to the left, but the web of human events is woven, unaffected by this freedom of action. Those who most need the cessation from labor, are unable to take the necessary rest, if the demands of trade should require their uninterrupted attention to business. And if the law did not interfere, the feverish, intense desire to acquire wealth, so thoroughly a characteristic of the American nation, inciting a relentless rivalry and competition, would ultimately prevent, not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature, and obeying the instinct of self-preservation by resting periodically from labor, even if the mad pursuit of wealth should not warp their judgment and destroy this instinct. Remove the prohibition of law, and this whole

some sanitary regulation would cease to be observed. No one, if he would, could do so. The prohibition of labor for these reasons may be contradictory of the constitutional affirmation of the equality of all men; and the prohibitory law may be practically unenforcible; but it would be difficult to establish any positive constitutional objection to it.1 It has been urged that this law, when founded upon this reason, of protection to the individual, may be sustained, if it was confined in its operations to slaves, minors, apprentices and others who are required to obey the commands, of others, and designed to protect them from the cruelty of incessant toil. But the slave or apprentice is no more bound to obey the behests of others, and to work at their command, than the free laborer, clerk, and even the employer himself, under the irresistible force of competition, in the struggle for existence and the accumulation of wealth. "It is no answer to the requirements of the statute that mankind will seek cessation from labor by the natural influences of self-preservation. The position assumes that all men are independent, and at liberty to work whenever they choose. Whether this be true or not in theory, it is false in fact; it is contradicted by every day's experience. The relation of superior and subordinate, master and servant, principal and clerk, always have and always will exist.

1 See post § 178.

"The question arising under this act is quite distinguishable from the case where the legislature of a State, in which slavery is tolerated, passes an act for the protection of the slave against the inhumanity of the master in not allowing sufficient rest. In this State, every man is a free agent, competent, and able to protect himself, and no one is bound by law to labor for a particular person. Free agents must be left free as to themselves. Had the act under consideration been confined to infants, or to persons bound by law to obey others, then the question presented would have been very different. But if we cannot trust free agents to regulate their own labor, its time and quantity, it is difficult to trust them to make their own contracts. If the legislature could prescribe the 'days' of rest for them, then it would seem that the same power could prescribe hours to work, rest and eat." Burnett, J., in Ex parte Newman, 9 Cal. 510.

Labor is in a great degree dependent on capital, and unless the exercise of power which capital affords is restrained, those who are obliged to labor will not possess the freedom for rest which they would otherwise exercise. Necessities for food and raiment are imperious, and exactions of avarice are not easily satisfied. It is idle to talk of a man's freedom to rest, when his wife and children are looking to his daily labor for their daily support. The law steps in to restrain the power of capital. Its object is not to protect those who can rest at their pleasure, but to afford rest to those who need it, and who, from the conditions of society, could not otherwise obtain it. The authority for the enactment, I find in the great object of all governments, which is protection. Labor is necessarily imposed by the condition of our race, and to protect labor is the highest office of our laws." For various reasons, laws have been generally sustained, which compel the closing of the stores of business. If the reasoning here pre

1 Dissenting opinion of Judge Field in Ex parte Newman, 9 Cal. 502, 518. The opinion of Judge Field although rejected by the majority of the court in Ex parte Newman, was after a change in the personnel of the court adopted as the rule in California in Ex parte Andrews, 18 Cal. 678, and was affirmed in many other later cases, the last being Ex parte Burke, 59 Cal. 6 (43 Am. Rep. 231); Ex parte Roser, 60 Cal. 177.

2 Vogelsang v. State, 9 Ind. 112; Shover v. State, 10 Ark. 259; Warne v. Smith, 8 Conn. 14; Lindenmuller v. People, 33 Barb. 549; Story v. Elliott, 8 Cow. 27; Johnston v. Com., 10 Harris, 102; Bloom v. Richards, 2 Ohio, 387; City Council v. Benjamin, 2 Strobh. 529; Specht v. Com., 8 Pa. St. 312. In the last case, the court expresses itself thus: "It intermeddles not with the natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences; it compels none to attend, erect or support any place of worship, or to maintain any ministry against his consent; it pretends not to control or to interfere with the rights of conscience, and it establishes no preference for any religious establishment or mode of worship. It treats no religious doctrine as paramount in the State; it enforces no unwilling attendance upon the celebration of divine worship. It says not to the Jew or Sabbatarian, 'You shall desecrate the day, you esteem as holy, and keep sacred to religion that we deem to be so! It enters upon no discussion of the rival claims of the first or seventh days of the week, nor pretends

sented be correct, and the premises into which it has been formulated be impregnable, the following conclusion is inevitable, viz. that no Sunday law is constitutional which does more than prohibit those acts, which are noisy and are therefore calculated to disturb the quiet and rest of Sunday worshipers, or which in their commission demand or are likely to demand, the services of others, who cannot refuse to serve, on account of the common interdependence of mankind. The doing of any act, which is noiseless and does not require the service of others, can not be prohibited. It is not maintained that this limitation upon the power of the State to regulate the observance of Sunday, is recognized and indorsed by the decisions of our courts. On the contrary, there are police regulations in the different States, which are sustained in violation of this rule of limitation. The laws which prohibit quiet and orderly amusements cannot be sustained under the rule, and so also those laws, which make void the commercial paper and deeds which are executed on Sunday. Other instances of existing legislation, contradictory of this rule of limitation, may be cited, but it is not necessary. But although not generally supported by the authorities, it is believed to be the correct rule. The same reasons, which are here advanced, would likewise support and justify legislation, designed to protect the Jew in his religious observance of Saturday, and the Mohamedan in his enjoyment of Friday. But if the rule

to bind upon the conscience of any man any conclusion upon a subject which each must decide for himself. It intrudes not into the domestic circle to dictate when, where, or to what God its inmates shall address their orisons; nor does it presume to enter the synagogue of the Israelite, or the church of the seventh-day Christian, to command or even persuade their attendance in the temples of those who especially approach the altar on Sunday. It does not in the slightest degree infringe upon the Sabbath of any sect, or curtail their freedom of worship. It detracts not one hour from any period of time they may feel bound to devote to this object, nor does it add a moment beyond what they may choose to employ. Its sole mission is to inculcate a temporary weekly cessation from labor, but it adds not to this requirement any religious obligation."